Land and Environment Court of New South Wales CITATION : Chi-Hsiung Hung and anor v Ku-ring-gai Council [2010] NSWLEC 1050 APPLICANT Chi-Hsiung Hung and Hsui-Mei Chang-Chien PARTIES : RESPONDENT Ku-ring-gai Council FILE NUMBER(S) : 10686; 10712 of 2009 CORAM: Brown C KEY ISSUES: APPEAL :- Order to modify unauthorised construction of front fence and associated works and refusal to issue Building Certificate for front fence and associated works LEGISLATION CITED: Environmental Planning and Assessment Act 1979 The Ku-ring-gai Residential Design Manual Development Control Plant No. 38 DATES OF HEARING: 25 February 2010 DATE OF JUDGMENT: 16 March 2010 APPLICANT Mr D Leamy, solicitor LEGAL REPRESENTATIVES: RESPONDENT Dr J Smith, solicitor SOLICITORS Norton Rose JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES Brown C 16 March 2010 10686, 10712 of 2009 Chi-Hsiung Hung and Hsui-Mei Chang-Chien v Ku-ring-gai Council JUDGMENT 1 COMMISSIONER: These are two related but separate appeals in relation to a front fence and associated works erected without approval at 178 Bannockburn Road Turramurra (the site). The parties agreed that the appeals be heard concurrently. The appeals 2 Appeal No 10686 of 2009 is an appeal against an Order (EPA 0076/09) under s 121B of the Environmental Planning and Assessment Act 1979 (the EPA Act) issued by Ku-ring-gai Council (the council) on 1 September 2009 for the alleged unauthorised construction of a front fence and associated works on the site. 3 The Order required: 1. Remove the unauthorised timber paling fence, which has been erected along the front boundary, setback approximately 500mm behind the existing masonry fence. 2. Remove the top portion of the unauthorised timber paling fences, which have been erected along the northern and southern boundaries forward of the dwelling, so that the fences have a maximum height of 1500 mm above existing ground level. 3. Remove the unauthorised solid screening inserts, which have been attached to the metal grilles associated with the existing front masonry fence . 4. Remove the top portion of the unauthorised metal grilles associated with the existing front masonry fence, so that the grilles have a maximum height of 1500mm above existing ground level. 5. Remove the unauthorised solid screening inserts, which have been attached to the automated vehicular entry gate. 6. Remove the top portion of the automated vehicular entry gate , so that the gate has a maximum height, not higher than the metal grilles either side of the gate, following compliance with point 4 of the terms of this Order. 4 At the hearing, the council included the following additional order: 7. Remove secondary gates which are setback approximately 700 mm and have a height of approximately 2.5 m 5 Appeal No 10712 of 2009 is an appeal against Council's refusal of a building certificate application on 31 July 2009 for the front fence and associated works the subject of the Order in Appeal No 10686 of 2009. The applicant seeks the building certificate to include: 1. A 2.5 m wide timber lapped and fence erected parallel within the sites from boundary and standing approximately 500 mm within the subject property. 2. The existing timber lapped and capped fences erected on the side boundaries of the property, forward of the existing dwelling and having a height in excess of 1500 mm. 3. Solid sheet metal inserts attached to the front metal grill fence. 4. Those portions of the front of metal grill fence having height greater than 1500 mm. 5. The solid sheet metal inserts attached to the front metal grill automated gate. 6. The section of the existing automated front gate having a height greater than 1500 mm. 7. The secondary gates that are setback around 700 mm from the front boundary and a height of 2.5 m. The site and nearby area 6 The site is Lot 1 in DP396154 and is zoned Residential 2(c) under the Ku-ring-gai Planning Scheme Ordinance (KPSO). Dwelling houses are permissible with consent in this zone and the site currently supports a single storey dwelling house with swimming pool at the rear. The site is generally rectangular and has a frontage to Bannockburn Road of 24.65m and a site area of 1126 sq m. 7 A palisade style fence is constructed along the front boundary (excluding the driveway) with a height ranging between 1.5 m at the supporting posts to 1.8 m at the highest point of the curved vertical pales between the posts. Solid metal panels are attached to the vertical pales. A solid automatic gate approximately 2 m in height that displays some decorative features of the palisade style fence is constructed across the driveway. A further gate and frame around 2.5 m in height is located around 700 mm behind this gate and consists of solid metal louvred panels. A 2.5 m high timber lapped and capped fence is constructed approximately 500 mm behind the palisade style fence. This fence is covered in imitation hedge material and landscaping is provided between the two fences. Side boundary fences around 1.8 m in height extend from the front boundary. The footpath area in front of the site is extensively landscaped. 8 The area surrounding the site is characterised by single and double storey dwellings with a variety of fencing styIes. The property adjoining the site to the north (180 Bannockburn Road) has a 1500mm high metal grille fence with rendered brick columns spaced approximately 3 m apart. The property adjoining the site to the south (176 Bannockburn Road) has a 900 mm high solid brick fence, while the property directly to the east of the site (123 Bannockburn Road) has a 900 mm high post and rail fence. The property to the north east of the subject site (125 Bannockburn Road) has no front fence. The evidence 9 Mr Andrew Minto, a town planner, provided evidence for the applicant and Mr Luke Donovan, also a town planner, provided evidence for the council. 10 Mr Donovan states that the fencing and associated structures is unsympathetic with the established fencing style along Bannockburn Road. While there are examples of hedging obtaining heights greater than 2 m, the predominant pattern is follow transparent fences of varying styles along with front boundary generally obtaining heights no greater than 1.5 m. The height is in excess of both council's controls and the established fencing height in the locality. 11 The lack of transparency of the fencing impacts on the streetscape character and leads to a loss of casual surveillance of the street and social interaction. Mr Donovan relies on the Ku-ring-gai Visual Character Study found in Appendix A of The Ku-ring-gai Residential Design Manual Development Control Plant No. 38 (DCP 38), that describes the existing character and provides the context in which future development should occur. In this case, the Visual Character Study categorises the site as being between 1945 and 1968. The distinguishing features of this era is individual residences on single lots including brick dwellings, almost exclusively single storey, on small lot sizes with an absence of front fences except on noisy or busy streets. In his opinion, the proposed fencing is inconsistent with the identified characteristics in the Visual Character Study. 12 Mr Donovan also relies on the Aims and Objectives for Residential Zones in Schedule 9 of the KPSO and the objectives in cl 4.1 for Streetscape, cl 4.1.1 Visual Character and cl 4.1.5 Front Fences from DCP 38 to support his position on the fence and other structures. 13 Mr Minto states that the site presents a high-quality visual outcome to the streetscape by virtue of the quality of materials used together with extensive planting and presentation/maintenance of that landscaping. The fencing elements in combination with the landscaping is largely obscured from view such that in the case of the secondary timber lapped fence, it is not visible to the casual observer of the property and presents more as a landscape screen rather than a fence. In his opinion, the fencing elements together with the front gates elements are consistent with the residential environment and result in an outcome where the fencing does not detrimentally impact upon the streetscape. 14 Mr Minto states that he understands that the owners of the property have constructed the fencing and associated structures to provide privacy and security to their front yard and vehicles parked on the driveway within the front setback. This is necessary as the owners have a number of vehicles and that the property provides undercover parking for only one car. Additional vehicles are therefore parked on the driveway. Also, the owners spend extended periods of time overseas and require additional security during these times. Findings The statutory requirements 15 For Appeal No 10686 of 2009, s 121ZK(4) of the EPA Act provides: (4) On hearing an appeal, the Court may: (a) revoke the order, or (b) modify the order, or (c) substitute for the order any other order that the person who gave the order could have made, or (d) find that the order is sufficiently complied with, or (e) make such order with respect to compliance with the order as the Court thinks fit, or (f) make any other order with respect to the order as the Court thinks fit 16 For Appeal No 10712 of 2009, s 149F(3) of the EPA Act provides: 3) On hearing the appeal, the Court may do any one or more of the following: (a) it may direct the council to issue a building certificate in such terms and on such conditions as the Court thinks fit, (b) it may revoke, alter or confirm a notice under section 149C, (c) it may make any other order that it considers appropriate. The merits 17 The Order addresses a number of separate components. These are: the palisade style fence and panelling on the front boundary, the automated gate on the front boundary, the lapped and capped fence located 500 mm inside the front boundary, the secondary gate located 700 mm behind the automated gate, and the lapped and capped side boundary fences from the front boundary. 18 A receipt for the palisade style fence suggests that the fence was constructed around May 1992. The receipt also indicates that similar style fencing was used as a gate across the driveway. Photographic evidence provided by Mr Minto indicates the existing solid metal panelling had been applied to the fence by 1996. The solid metal panelling had also been applied to the gate at this time. When asked by the Court, Mr Leamy, for the applicant and after instructions, submitted that the lapped and capped fence located inside the front boundary and the side boundary fences were constructed in early September 2009 (although this would appear to be incorrect given that it is mentioned in the Order dated 1 September 2009) and the secondary gate was constructed around October 2009 (although I note that this structure was not mentioned in the Order dated 1 September 2009). 19 In my view, the different timing for the different components that are contained in the Order is of some importance in exercising the discretion available in s 121ZK(4). The palisade style fence on the front boundary and has been in existence since 1992 and the solid panelling has been in existence since at least 1966. In my view, it would be unreasonable to require the removal or the modification to this fence given that it has been in existence, in it's current form for at least 13 years and has not attracted the attention of the council during this time. Importantly, the fencing predates DCP 38, which was adopted by the Council on 20 November 2001 and became effective on 4 February 2002. It was unclear what planning controls applied to front fences prior to DCP 38 although this is not such a significant point given that the council had not instigated any action to remove the fence and the panelling beyond these proceedings. 20 The other components of the Order do not fall within the same category as they were constructed in relatively recent times. While there is some doubt over the time the lapped and capped fence and side fencing was constructed, there was no suggestion that it occurred prior to DCP 38. The provisions of DCP 38 provide comprehensive requirements for the provision of front fences. For example, cl 4.1.5 states that front fences are a critical aspect in determining the appearance of the street. Fences should be designed and located so as to maintain the streetscape character and be consistent with the established pattern of fences. This can be achieved by restricting visually solid forms and restricting the height of visually transparent fences to 1.2 m. The clause makes reference to the Visual Character Study to determine the typical treatment of fences. 21 The automated gate on the front boundary, the secondary gate, the lapped and capped fence inside the front boundary and the side boundary fences are clearly in conflict with the form of fencing anticipated by DCP 38 and the Visual Character Study. Given their recent construction, I agree with the council that, in their current form, they are inappropriate in the streetscape. While the landscaping on the footpath, the landscaping between the fences and the use of the imitation hedge material minimises the visual impact of these structures, I am not satisfied that the considerable reliance on these ameliorative measures is sufficient to overcome the significant breaches of DCP 38 and the Visual Character Study. In my view, these are not structures that are appropriate at the street frontage and theoretically if a development application were lodged, there would be a sound planning basis for its refusal irrespective of any measures to screen or hide the structures. 22 With the consent of the parties, a further inspection of the site and surrounding was undertaken. Mr Donovan stated that the Court should limit its inspection to the relevant area within the Visual Character Study whereas Mr Minto stated that the Court should extend its inspection to areas beyond the area identified Mr Donovan to other parts to include other parts of Turramurra and Pymble. I am satisfied that the appropriate area for consideration is that area within the visual catchment of the site and a small area beyond. If considered against this area, the streetscape and particularly the existing fencing more closely reflects the character within the Visual Character Study. While there are examples that are inconsistent with this character; the predominant character is that of small open fencing or a general absence of front fences, except on some corner blocks. Landscaped building setbacks to existing dwellings can generally be observed from the street. 23 In terms of the Order, and based on my findings that the palisade style fence and the panelling can remain for the reasons mentioned previously, the other structures should reduced in height to a maximum of 1.8 m so that they are predominantly screened by the palisade fence that ranges between 1.5 and 1.8 m in height. The small area of the palisade style fence and the panelling between 1.5 m and 1.8 m that will allow limited viewing of the structures behind is not significant and will not have any meaningful impact on the streetscape. I propose to allow a time of 8 weeks from the date of the Order to carry out the necessary work. Orders 24 In Appeal No 10686 of 2009, pursuant to s 121ZK(4)(b) of the EPA Act, the Orders of the Court are; 1. The appeal is upheld, in part. 2. The terms of the Order (EPA 0076/09) issued by Ku-ring-gai Council on 1 September 2009 is modified to read : 1. Remove the timber paling fence above a height of 1.8 m from ground level , which has been erected 500mm behind the existing fence on the front boundary. The existing imitation hedging is to be retained. 2. Remove that portion of the timber paling fences, which have been erected along the northern and southern boundaries forward of the dwelling above a height of 1.8 m from ground level. 3. Remove that part of the automated vehicular entry gate and solid screening inserts, which are above a height of 1.8 m from ground level. 4. Remove that part of the secondary gates which are setback approximately 700 mm above a height of 1.8 m from ground level. 3. Pursuant to s 121ZK(4)(b), the Period for compliance with the Order is modified to read : The Order shall be complied with within 8 weeks from the date of this Order . 4. The exhibits are returned. 25 In Appeal No 10712 of 2009, pursuant to s 149F(3)(a) of the EPA Act the Orders of the Court are; 1. The appeal is upheld, in part. 2. On satisfactory completion of the works identified in the terms of the Order EPA0076/09 issued by issued by Ku-ring-gai Council on 1 September 2009 and modified by the Land and Environment Court proceedings No 10686 of 2009, Ku-ring-gai Council is directed to issue a Building Certificate for these works. 3. The exhibits are returned. _____________ G T Brown Commissioner of the Court DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.